[Cites 10, Cited by 0]
Chattisgarh High Court
Smt. Prakash Bai Shrivash vs State Of Chhattisgarh on 27 February, 2026
1
2026:CGHC:10399
Digitally signed
by RAVVA UTTEJ
KUMAR RAJU
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1629 of 2021
Smt. Prakash Bai Shrivash W/o Shankar Lal Shrivash, aged about 38 years
R/o Pavni, Police Station Bilaigarh, District Baloda Bazar Bhatapara
(Chhattisgarh), District : Balodabazar-Bhathapara, Chhattisgarh
... Applicant
Versus
State of Chhattisgarh, through Police Station Bilaigarh, District Baloda Bazar
Bhatapara (Chhattisgarh),
... Respondent
(Cause title is taken from Case Information System Software.)
For Appellant : Mr. Shubham Tripathi, Advocate.
For State/Respondent : Mr. Rishi Raj Pithwa, Dy. G.A.
Hon'ble Shri Justice Arvind Kumar Verma
(Judgment on Board)
27.02.2026
1. This appeal is preferred under Section 374 (2) of the Code of Criminal
Procedure, 1973 against the impugned judgment of conviction and
order of sentence dated 26.11.2021 passed by learned Special Judge
(NDPS Act), Baloda Bazar, District- Baloda Bazar-Bhatapara (C.G.) in
Special Criminal Case (N.D.P.S.) No. 05/2017, wherein the said Court
convicted the appellant and sentenced her as under:-
Conviction Sentence
U/S 20 b (ii) (B)of NDPS Act R.I for 04 years with fine amount of
Rs. 25,000/-, in default of payment of
fine, to undergo further R.I. for six
months.
2. As per case of the prosecution, on 07.04.2017 at about 16:05 hours,
Station House Officer (SHO) K.S. Usendi of Police Station Bilaigarh,
along with Sub-Inspector R.S. Singh, Constable No. 726 Pandu
Bhardwaj, Constable No. 543 Hemant Rajput, and Lady Constable No.
452 Mohan Kumari, proceeded on routine patrol duty towards village
Pawani for the purpose of curbing illegal activities relating to illicit liquor,
gambling, and narcotic substances. At approximately 16:25 hours, while
present in village Pawani, SHO K.S. Usendi received credible secret
information from a reliable informant that one Shankar Lal Shrivas,
resident of village Pawani, was illegally possessing and selling narcotic
substance (ganja) from his house, and that immediate raid would result
in recovery of contraband. Acting upon the said information, SHO K.S.
Usendi reduced the information into writing vide Exhibit P/04 and
prepared the preliminary information report vide Exhibit P/01. Notice
under Section 42 of the NDPS Act was prepared (Exhibit P/03). The
information so recorded was forthwith communicated to the Sub-
Divisional Officer (Police), Bilaigarh, through Constable No. 726 Pandu
Bhardwaj in compliance with the mandatory provisions of law.
Thereafter, in the presence of independent witnesses namely
Ramcharan Sahu and Munnalal Sahu, the police party proceeded to
take lawful action on the basis of the said information. During the
course of the raid, the accused Shankar Lal Shrivas was not found
present at his house. However, his wife, namely accused Smt. Prakash
Bai, was found present therein. She was apprised, in the presence of
independent witnesses namely Ramcharan Sahu and Munnalal Sahu,
about the secret information received by the police regarding
possession and sale of illegal narcotic substance. Prior to conducting
the search, notice under Section 50 of the NDPS Act (Exhibit P/05) was
duly served upon accused Smt. Prakash Bai, informing her of her legal
right to be searched before a Gazetted Officer or Magistrate. The
accused, after understanding the contents of the notice, gave her
written consent for her house to be searched by the police party itself in
the presence of witnesses, which was recorded vide Exhibit P/06.
Thereafter, personal search of the accused was conducted by the
police party in the presence of independent witnesses, and
memorandum/panchnama thereof was prepared vide Exhibits P/07 and
P/08. Subsequently, search of the residential premises of the accused
was carried out in accordance with law and in the presence of the
aforesaid witnesses. During the course of search of the residential
premises, in a newly constructed room situated on the upper floor of the
house, one packet kept inside a nylon bag and another open packet
were recovered. Upon inspection, the said packets were found to
contain suspected narcotic substance (ganja). A small weighing scale
and a coin were also recovered from the said place, indicating use for
weighing the contraband substance. The search and seizure
proceedings were conducted in the presence of independent witnesses,
and a detailed search-cum-seizure panchnama was prepared on the
spot, which is marked as Exhibit P/09. Thereafter, a detailed recovery
panchnama was prepared on the spot, which is marked as Exhibit P/10.
During the search, from a packet kept inside a nylon bag, 01 kilogram
and 300 grams of suspected narcotic substance (ganja), along with one
small weighing scale and a coin, were seized. For the purpose of prima
facie identification, the recovered substance was tested by rubbing,
burning, and smelling it in the presence of independent witnesses.
Upon such examination, the substance was identified as ganja. An
identification panchnama in this regard was prepared on the spot in the
presence of witnesses and is marked as Exhibit P/11. Thereafter, Police
Station In-charge K.S. Usendi deputed Constable No. 543, Hemant
Rajput, to summon an authorized weigher for proper weighment of the
seized contraband. A duty certificate (Exhibit P/24) was issued to him
for the said purpose. Accordingly, notice (Exhibit P/18) was served upon
the weigher, Ranjit Devangan, who was brought to the spot. Upon
arrival, weigher Ranjit Devangan conducted physical verification of his
weighing scale in the presence of independent witnesses and certified
its correctness. The verification memo in this regard was prepared and
marked as Exhibit P/12. Thereafter, the seized narcotic substance was
weighed, and it was found to be 01 kilogram and 300 grams. From the
total seized quantity, two representative samples of 50 grams each
were drawn separately, sealed, and packed in accordance with law. A
weighment and sampling panchnama was prepared on the spot, which
is marked as Exhibit P/13 and after completion of other formalities the
seized property was sent to Malkhana. The samples of seized cannabis
plants were sent to FSL for its chemical examination. After completion
of due and necessary investigation, a charge-sheet was filed by the
police.
3. To robe the appellant in the crime in question, prosecution has
examined as many as 09 witnesses. In the statement of the appellant
was recorded under Section 313 Cr.P.C., the appellant pleaded her
innocence and false implication in the case. However, no defence
witness was adduced by the appellant.
4. Learned Trial Court after hearing the counsel for the respective parties
and considering the material available on record, has convicted and
sentenced the accused/appellant as mentioned in opening para of this
judgment.
5. I have heard learned counsel for the parties at length and perused the
record with utmost circumspection.
6. Learned counsel for the appellant vehemently argued that the
Investigating Officer has not complied with the mandatory provisions of
Section 50 (4) of the NDPS Act, 1985. He further argued that as per the
secret information given by the Mukhbir that the husband of the
appellant was selling the Ganja and kept the ganja in his house, on that
information, the Investigating Officer along with his raiding party, raided
the house of the husband of the appellant, but husband of the appellant
was not present at that time. Learned counsel further submits that the
learned Trial Court failed to correctly examine the statements of the
seizure witnesses and ignored material contradictions and omissions in
the evidence of the prosecution witnesses. The findings of the Courts
below are based on assumptions and not on clear and reliable
evidence, which has resulted in the wrongful conviction of the appellant.
Further, the prosecution has failed to prove the essential ingredients of
the offence under Section 20B(ii)(b) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 beyond reasonable doubt, including
conscious possession and compliance with mandatory legal provisions.
Therefore, the impugned judgment of conviction and sentence
deserves is liable to be set aside and the appellant is entitled to
acquittal.
7. The vital question in this case is whether there is a violation of Section
50 (4) of the NDPS Act, 1985 ?
8. Section 50 of the NDPS Act, 1985 deals with the conditions under
which the search of the persons shall be conducted. The purpose of
this provision is to ensure fairness, transparency, and protection
against false implication. Compliance with Section 50 is mandatory
in case of personal search, and failure to comply may vitiate the
conviction. Section 50 (4) of the NDPS Act, 1985 is a specific
procedural safeguard stating that no female shall be searched by
anyone except a female.
9. The record reveals that as per Search Panchnama (Ex. P/08) on the
instructions of the Investigating Officer, the appellant had touched the
male police officer. For ready reference, the significant portion of search
panchanama (Ex.P-/8) is reproduced herein as under :-
"laf{kIr fooj.k bl izdkj gS fd vkt fnukad 07-04-2017 dks
bl oDr izdk'k ckbZ Jhokl w/o 'kadj Jhokl }kjk ekSds ij
jsM djus mifLFkr mDr iqfyl vf/k-@deZ- ds cnu ,oa okgu
dh ryk'kh le{k xokg yh xbZ fdlh izdkj dk vkifRRtud
oLrq,sa ugh feyhA"
10. A bare reading of the afore said manifestly points towards that the
appellant was forced to touch the body of the male police officers for
their search. Section 50 (4) of NDPS Act, 1985 provides that no female
shall be searched by anyone excepting a female, so how can a female
be forced to touch the body of the male person. Under the above
provisions a male police officer cannot personally search a woman, nor
can he direct to reach her body to his person for a search, also he
cannot direct the woman to take "Jama Talashi" of male police officers.
Either search or Jama talashi it must be conducted with strict regard to
decency.
11. In the present case, a female accused was forced to search a male
police officer instead, that act does not satisfy the mandatory
requirement of Section 50(4). The law does not require the accused to
search the police officer; rather, it mandates that if the accused is a
woman, her search must be conducted only by a female officer, and
failure to comply this would amount to non-compliance of mandatory
provision and such violation seriously affect the prosecution case.
Therefore, a contraband seized as a result of search and seizure made
in contravention of Section 50 (4) of NDPS Act, 1985, cannot be used to
fasten the liability of unlawful possession of the contraband on the
female person from whom the contraband was allegedly being seized in
an illegal manner.
12. It is also pertinent to mention here that in the case in hand, the secret
information was received by the Investigating Officer that the husband
of the appellant had kept the contraband article ganja in his house for
selling, but at the time of conduction of raid, the husband of the
appellant was not present in the house and upon being searched the
house the appellant by the Investigating Officer, 1.300 kilogram ganja
was recovered from newly constructed room. No statement of the
accused was recorded by the Investigating Officer under Section 27 of
the Indian Evidence Act, 1872, and no discovery of any fact has been
made in consequence thereof. Further, the house in question was not in
the exclusive possession of the appellant, as the husband of the
appellant and other family members were also residing therein.
Therefore, it cannot be said that the ganja was kept in the exclusive
possession of the appellant within her house premises.
13. I have also found that the mandatory requirements of Central
Government Notification No. 01/89 have not been complied with by the
prosecution. Further, the provisions of Section 52A of the Narcotic
Drugs and Psychotropic Substances Act, 1985, which lay down the
procedure for proper seizure, sampling, inventory, and certification of
seized contraband before the Magistrate, have also not been followed
in its true spirit. These safeguards are intended to ensure the
authenticity and integrity of the seized material and to rule out any
possibility of tampering. Non-compliance with such mandatory
provisions creates serious doubt regarding the prosecution case and
affects the credibility of the alleged recovery. In view of these material
procedural lapses, this Court is of the considered opinion that the
learned Trial Court erred in law in convicting the appellant under
Section 20(b)(ii)(B) of the NDPS Act, 1985, and the conviction cannot
be sustained.
14. Ex consequenti, the criminal appeal is allowed. The impugned judgment
of the learned trial Court is hereby set aside. The appellant is acquitted
of the charge under Section 20 b (ii) B of NDPS Act, 1985 by extending
him benefit of doubt.
15. The appellant is reported to be on bail. However, keeping in view the
provisions of Section 481 of BNSS, 2023 the appellant is also directed
to furnish a personal bond for a sum of Rs. 25,000/- with one surety in
the like amount before the Court concerned which shall be effective for
a period of six months alongwith an undertaking that in the event of
filing of special leave petition against the instant judgment or for grant
of leave, the aforesaid appellant on receipt of notice thereon shall
appear before the Hon'ble Supreme Court.
16. The trial Court record along with a copy of this judgment be sent back
immediately to the trial Court concerned for compliance and necessary
action.
Sd/-
(Arvind Kumar Verma)
JUDGE
U.K. Raju
